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[2011] ZALCCT 50
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Food and Allied Workers Union obo Vokwana v Commission for Conciliation Mediation and Arbitration and Others (C 948/08) [2011] ZALCCT 50 (1 May 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
Case
No: C948/08
Not
Reportable
In
the matter between:
FOOD
AND ALLIED WORKERS UNION on behalf of
VOKWANA
........................................................................................................
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
.............................................................................
First
Respondent
J
M JACOBS
N.O.
...............................................................................
Second
Respondent
CAPE
OIL AND MARGARINE (PTY) LTD
........................................
Third
Respondent
Date
of hearing : 20 April 2011
Date
of judgment : May 2011
JUDGMENT
VAN
VOORE AJ:
Introduction
This
is an application in terms of section 145 of the Labour Relations
Act, 66 of 1995 (the LRA) to review and set aside an arbitration
award of the second respondent (the commissioner) dated
22 October 2008, substituting that award with a finding
that
the dismissal of Mr Vokwana (Vokwana) was substantively unfair
and reinstating Vokwana into the employ of the third respondent
(the
company). Alternatively, the applicant seeks an order that the
dispute be remitted back to the first respondent (the CCMA)
for
arbitration before an arbitrator other than the commissioner.
Vokwana
was employed by the company as a laboratory analyst. The company
is
a fast moving consumable goods company and its range of products
includes margarine. One of Vokwana’s duties was to conduct
a
solid fat content (SFC) test during each shift on which he worked.
The purposes of the test include ensuring that any difficulties
or
problems in relation to the products are timeously detected so that
the company is then in a position to take steps in an attempt
to
resolve the problem. The allegations of misconduct against Vokwana
were:
“
Failure
in routine analysis (Solid Fact Content) (SFC) of final product)
Sunshine D Lite tub (1kg) on 08/08/2008
The above led to non-conformance
of the product resulting in a product recall, as the product was not
spreadable as per product
specification (product hard due to
contamination)”.
Vokwana
was dismissed following a disciplinary hearing. Vokwana referred an
alleged unfair dismissal dispute to the CCMA. The
commissioner
determined that Vokwana’s dismissal was procedurally and
substantively fair. It is that award of the commissioner
which
Vokwana seeks to have reviewed and set aside.
During
the day shift on 8 August 2008 Vokwana was required to
conduct an SFC test (the test). The test was not done.
Some of the
product (Sunshine D margarine) produced on that day did not conform
to the company’s usual requirements in
that the margarine was
hard and would not spread easily. As a consequence numerous
customers who had purchased margarine registered
complaints with the
company. The company decided to recall the affected product and
suffered financial harm. These facts are
undisputed.
Vokwana
conceded that he did not conduct the test. Vokwana offered various
explanations for not conducting the test. These explanations
were
the following.
5.1.
He did not have time to do the test. He was unable to conduct the
test at the time as there was a ‘moisture problem’
and
that he was attending to that problem.
5.2.
The employees work as a team and the “practice” is that
when one of them is not able to conduct the test then another
would
do so.
5.3.
He expected his colleague, Clement Ntita (Ntita), employed by the
company as a technician, to complete the test as was the
“practice”.
Ntita should have done the test.
5.4.
He could not do the test as a previous sample had burnt and he did
not have permission to go into the cold storage area to
obtain a
further sample.
The
arbitration award
The
commissioner made a number of factual findings including the
following:
6.1.
It was Vokwana’s responsibility to carry out the test on
8 August 2008 and that he did not do it.
6.2.
Vokwana was negligent as he did not conduct the test
6.3.
Vokwana did not inform Mavis Vanyaza (Vanyaza) or Miriam Israel
(Israel) that the test had not been done.
6.4.
Vokwana knew what was expected of him and did not fulfil his duties.
6.5.
Vokwana “failed to own up to what had happened.”
6.6.
The company suffered financial loss.
The
commissioner also found that Vokwana was not “totally honest
and failed to own up to what had happened.”
The
commissioner’s award records the following:
“
51. the
applicant clearly didn’t act as a diligent and responsible
employee under the circumstances. This caused the Respondent
great
financial loss as the whole batch of margarine had to be recalled.
Numerous customer complaints had been received and the
respondent’s
image and credibility in the industry was negatively affected.
52. I thus find that the
applicant was negligent in the performance of his duties and that
this negligent led to damage of the respondent’s
property or
products leading to a financial loss for the employer.
53. Considering whether the
applicant was grossly negligent in the performance of his duties I
find that the applicant carried an
enormous responsibility to do his
work diligently and with the utmost care.
54. In cross-examination Israel
testified that the Applicant made a bad judgment call in not doing
the SFC test and it was a big
oversight.
55. Such an oversight cannot be
accepted, especially in the case of the applicant where he had worked
for the respondent for 28
years. The applicant clearly knew what was
expected of him but didn’t do it.
56. I also considered that the
applicant failed to own up to what had happened. He wanted to involve
other persons in the matter
while he didn’t act responsible.
57. I thus find that under the
circumstances the respondent was able to prove that the applicant
acted grossly negligently and that
the sanction for gross negligence
was dismissal.”
The
review grounds
The
applicant’s review grounds are the following:
9.1.
The commissioner‘s finding that the dismissal was fair is not
rational or justifiable in relation to the reasons given
/ or the
material properly before her and another reasonable person may come
to a different finding.
9.2.
The commissioner’s finding that the applicant had made the
continued employment relationship intolerable is, with respect,
baseless as the company produced no evidence to demonstrate that
Vokwana’s repeated commission of gross negligence nor was
any
evidence adduced to suggest that it was more than likely that the
applicant may commit the offence again.
9.3.
The commissioner’s undue reliance on the evidence of enormous
financial harm caused to the company by Vokwana, when such
evidence
was not substantiated in any serious way by the company.
In
oral argument the applicant’s representative also submitted
that the commissioner consulted a gross irregularity by,
inter
alia
, not expressing an opinion or ‘material issues’
alleged to be relevant to the dispute. This criticism is misguided
and I will return to it later. Further, in oral argument, the
applicant’s legal representative submitted that the ground
of
review is that the award is one that no reasonable commissioner
could make having regard to the evidentiary material before
the
commissioner.
Whilst
accepting that it was his responsibility to conduct the test,
Vokwana, and in the same breadth, testified that ‘there
were
other things which [he] was doing.’ In effect Vokwana claimed
that he did not have time to do the test and that he
expected Ntita
to conduct the test. However there was no evidence that Vokwana
asked Ntita, or indeed another employee to conduct
or to complete
the test. Vokwana further testified that he did not have access to
the cold storage section. This was offered
in light of the fact that
Vokwana did indeed place a sample in the oven, that the sample had
burnt and that he needed another
sample to “re-do” the
test. The evidence of Israel was that Vokwana simply had to redo the
test. Vokwana’s
version that he did not have access to the
cold storage area was not put to the company’s witnesses when
they gave their
evidence. I should add that Ms P Addison (Addison),
the company’s representative, when cross-examining Vokwana,
disputed
Vokwana’s version that he did not have access to the
cold storage area. Addison was also a witness at the arbitration
proceedings.
The
undisputed evidence was that production stopped at 13h45 and that
Vokwana had until approximately 17h45 to conduct the test.
It was
common cause that the tests are carried out whilst the margarine
lines are running and that it takes between an hour and
an
hour-and-a-half to carry out the test. Vokwana had from 08h06 to
conduct the test. This was the undisputed evidence of Vanyaza.
Israel,
on behalf of the company, testified that if a sample had burnt in an
earlier attempt to do the test then Vokwana had to
redo the test.
Vokwana had in fact attempted to carry out the test and that the
sample had burnt. It is not disputed that Vokwana
did not ask Ntita
or any other colleague to assist in this attempt to conduct the
test. It is also not disputed that no evidence
was led that Ntita or
any other of Vokwana’s colleagues were aware that he had
placed a sample in the oven. In the circumstances,
even if Vokwana
seeks to rely on an alleged ‘practice’ that colleagues
would assist, there was no evidence that his
colleagues were aware
of his attempt to conduct a test or that he had called for their
assistance on the day in question.
The
record of the arbitration proceedings does reveal that Vokwana did
not take responsibility for the failure to carry out the
test.
Vokwana did indeed offer a number of explanations for the fact that
the test was not carried out. The commissioner’s
assessment
and conclusion that Vokwana was not “totally honest and failed
to own up to what had happened” is not
one that is without
foundation. In the face of the various explanations or defences
offered by Vokwana, in particular his unsubstantiated
claim that
Ntita should have done the test and the he ‘alone’ was
not responsible, the commissioner’s assessment
falls within a
range of reasonable assessments. It is the commissioner who presided
over the arbitration proceedings and observed
Vokwana during the
process of him giving evidence.
It
was also contended that Vokwana’s conduct did not amount to
gross negligence and that the commissioner did not have a
basis for
his finding of gross negligence. The undisputed facts before the
commissioner were that that an SFC test must be done
on each shift,
that Vokwana was employed as a laboratory and was required to do the
test, that Vokwana did not do the test, that
Vokwana did not ask one
of his colleagues to do the test, that the Vokwana and the company’s
other employees appreciated
the importance of the test, that Vokwana
did not inform Vanyaza or Israel that the test was not done, that
the product did not
conform to the ordinary specifications, that
customers complained and that the company recalled affected product
and suffered
financial loss. Those facts are a sufficient basis for
the finding of gross negligence.
The
fact that the company did indeed suffer financial harm was
undisputed. In argument, Vokwana’s legal representative
conceded that the company did indeed suffer financial harm. In the
circumstances, the allegation as to the commissioner’s
undue
reliance on unsubstantiated financial harm is not sustainable.
In
argument Vokwana’s legal representative submitted that Vokwana
had in fact showed remorse. This does not find support
in the record
of the arbitration proceedings. Whilst it is so that Vokwana
accepted that the test was not done and that it ought
to be have
been done, Vokwana refused to accept personal responsibility and in
fact offered a range of explanations including
that he and his
colleagues work as a team and that, therefore, he is not responsible
alone or individually, that a colleague
ought to have carried out
the test, that he could not carry out the test because he was
attending to a “moisture problem”,
that he did not have
sufficient time to carry out the test and that he could not “redo”
the test because he did not
have access to the cold storage section
of the plant. This is not consistent with an employee showing
remorse. In the circumstances,
the commissioner’s assessment
and finding on this question is not only supported by the material
properly before him but
is well supported.
What
remains is whether or not dismissal was the appropriate sanction or
put differently, whether Vokwana’s continued employment
was
‘intolerable’. On this score the commissioner’s
arbitration award records,
inter alia
, the following:
“
53.
Considering whether the applicant was grossly negligent in the
performance of his duties I find that the applicant carried an
enormous responsibility to do his work diligently and with the utmost
care.
54. In cross-examination Israel
testified that the applicant made a bad judgement call in not doing
the SFC test and it was a big
oversight.
55. Such an oversight cannot be
accepted, especially in the case of the applicant where he had worked
for the respondent for 28
years. The applicant clearly knew what was
expected of him but didn’t do it.
56. I have also considered that
the applicant failed to own up to what happened. He wanted to involve
others in the matter while
didn’t act responsible.
57. I thus find under the
circumstances the respondent was able to prove that the applicant
acted grossly negligently and that the
sanction for gross negligence
was dismissal.
58. In terms of the case of
Sidumo v Rustenburg Platinum Mines Ltd
(2007) 28 ILJ 2405 (CC)
a commissioner is required to determine whether or not the employer’s
decision to dismiss the employee
was fair. The commissioner must
assess the fairness of the dismissal objectively taking into account
the totality of the circumstances.
The Court also set out the facts
and circumstances that may be relevant to the question whether
dismissal was an appropriate sanction.
59. Taking the totality of the
circumstances into account I find that the employer’s decision
to dismiss the employee was
fair.
...
62. The conduct of the applicant
was so serious that it made the continued employment relationship
intolerable.”
The
commissioner had before him evidence that Vokwana, employed as a
laboratory analyst, did not conduct the test. The test was
an
important part of his job. Vokwana repeatedly refused to accept
personal responsibility and in doing so went as far as saying
that
Ntita should have done the test. The consequences of the failure to
do the test were serious. Customers complained and the
company had
to recall the affected product. The company suffered financial harm.
Vokwana, an experienced man, knew what was required
of him and
failed to do it. Faced with these facts and circumstances, the
commissioner’s conclusion that Vokwana’s
conduct was so
serious that it made the continued employment relationship
intolerable is hardly surprising. The commissioner
had regard to the
ordinary and well known principles of our law on dismissal as an
appropriate sanction including length of service,
the employee’s
personal circumstances, the nature of the job, the seriousness of
the misconduct and the consequences of
the misconduct and the fact
that the company considered whether Vowana could be employed
elsewhere in the business.
It
is not the applicant’s case that the commissioner acted in bad
faith or capriciously. The fact that another commissioner
might come
to a different conclusion on sanction is not the test. In respect of
sanction it is, amongst other factors, required
that the
commissioner’s decision be a reasonable one or that it falls
within a band of reasonable decisions. On the material
properly
before the commissioner, the applicant has not made out a case that
the commissioner’s decision was one which
no reasonable
decision maker would arrive at. In argument in this Court the
commissioner’s award was criticised for not
spelling out in
chapter and verse, or differently put, detailing every twist and
turn of the commissioner’s thinking so
as to establish that
the commissioner had ‘investigated every alley’ and had
discounted irrelevant factors and had
taken into account only
relevant factors. That is not the test for review of arbitration
awards. The commissioner heard the evidence
of various witnesses and
considered such documentary evidence as was presented by the parties
at the arbitration proceedings.
The material facts were largely
undisputed and many of those facts were common cause. The
commissioner’s award in respect
of her findings is a reasoned
one. The commissioner, having regard to the facts, concluded that
Vokwana’s conduct was grossly
negligent, that Vokwana had a
fair hearing and that dismissal was the appropriate sanction. The
commissioner has, on the basis
of the material properly before her,
given a reasoned arbitration award.
The
award falls to be reviewed and set aside if the commissioner’s
decision is one which no other reasonable commissioner
could make.
An instructive assessment of what section 145 of the LRA requires is
to be found in the judgment of Van Niekerk J
in
Pam
Golding Properties (Pty) Ltd v Erasmus and Others
.
1
In
that matter Van Niekerk J held that:
“
18. In
summary, section 145 requires that the outcome of CCMA arbitration
proceedings (as represented by the commissioner’s
decision)
must fall within a band of reasonableness. The Court is also
empowered to scrutinise the process in terms of which the
decision
was made. If a commissioner fails to take material evidence into
account, or has regard to evidence that is irrelevant,
or the
commissioner commits some other misconduct or a gross irregularity
during the proceedings under review including for example,
a material
mistake of law, and a party is likely to be prejudiced as a
consequence, the commissioner’s decision is liable
to be set
aside regardless of the result of the proceedings or whether on the
basis of the record of the proceedings, that the
result is
nonetheless capable of justification.”
The
commissioner’s assessment of the evidence and conclusions of
fact and approach to sanction are supported by the evidence
at the
arbitration proceedings. It cannot properly be said that the
arbitration award is tainted by misconduct or a gross irregularity
as contemplated in s145 of the LRA. The arbitration award does
indeed fall within a band of reasonableness.
Under
our law it is not permissible for the Labour Court, on review, to
interfere in a matter such as the present.
In
the circumstances I make the following order:
The
review application is dismissed with costs.
_____________________
VAN
VOORE AJ
Appearances:
For
the applicants : T Ralehoko of Cheadle Thompson and Haysom
For
the respondent : B MacGregor of Macgregor Erasmus Attorneys
1
(2010)
31 ILJ 1460 (LC)